President Barack Obama’s plan to issue a “ban the box” Executive Order may not directly affect nonfederal government employers, but it continues a movement in both the public and private sectors against considering criminal history early in the hiring process. A White House fact sheet issued November 2, the same day Obama traveled to New Jersey to outline plans to help the formerly incarcerated, explains that the president is directing the federal Office of Personnel Management “to take action where it can by modifying its rules to delay inquiries into criminal history until later in the hiring process.” 
The fact sheet says most federal agencies already have taken that step. It also notes that many states and cities have passed laws requiring employers to remove the job application section that asks if prospective employees have a criminal record. The fact sheet also notes that many private companies have decided on their own to delay asking about criminal history until later in the hiring process to make sure job seekers aren’t unnecessarily screened out before having a chance to explain their circumstances.
The “ban the box” Executive Order is part of an array of steps Obama announced on the New Jersey trip to promote reintegration of formerly incarcerated individuals into the workforce and society at large. The order, which will apply only to federal agency employment, is a more limited version of legislation Congress is considering that would ban the box for federal contractors in addition to federal agency hiring.
Even without legislation, the trend is expected to continue, according to Rachael Luzietti, an attorney with DiMuroGinsberg, PC, in Alexandria, Virginia. “This type of legislation is likely to continue expanding, eventually reaching many private employers,” she says. “That’s not to say that employers will not be able to inquire into an applicant’s criminal history, just that they will not be able to do so until much later in the screening process.”
Angela Johnson, an attorney with Faegre Baker Daniels LLP in South Bend, Indiana, says many private employers already have removed the criminal history question from applications as a way to increase the candidate pool for certain positions and in response to increased scrutiny by the Equal Employment Opportunity Commission (EEOC).
Johnson says the EEOC has argued that early-stage criminal history inquiries have a statistically disparate impact on certain minorities but that the agency “has thus far failed to produce statistical evidence that passes muster by the courts.”
Employers affected by the order as well as state and local laws should examine their applications—both paper and electronic—along with handbooks and other hiring policies, Johnson says. Also, employers should examine the scope of any prohibition to determine whether just certain low- to medium-level felony offenses are prohibited from inquiry or whether misdemeanor offenses also are prohibited.
Johnson also says any management or HR personnel who are involved in the hiring or promotion process should be made aware of the employer’s obligations, and they must understand that a prohibited inquiry could occur not only on an application but also during an oral interview.
Whether covered by the Executive Order or a state or local law or even a company policy, employers should develop a plan for dealing with claims that they haven’t complied with a law or policy, Luzietti says. “Standardizing a method for responding to applicant complaints will help deal with the complaints and may help minimize the damage to the employer.”